Burgard v. Burgard

• Decision Date: 26 February 2013
• Docket Number: No. 20120285.,20120285.
• Citation: 2013 ND 27,827 N.W.2d 1
• Parties: Kira Lynn BURGARD, Plaintiff and Appellee v. Dammon Jon BURGARD, Defendant and Appellant.
• Court: North Dakota Supreme Court

827 N.W.2d 1

2013 ND 27

Kira Lynn BURGARD, Plaintiff and Appellee

v.Dammon Jon BURGARD, Defendant and Appellant.

No. 20120285.

Supreme Court of North Dakota.

Feb. 26, 2013.

Stephen R. Dawson, Fargo, N.D., for plaintiff and appellee.

Jeff A. Bredahl, Fargo, N.D., for defendant and appellant.

MARING, Justice.

[¶ 1] Dammon Burgard appeals from the trial court's default judgment awarding Kira Burgard primary residential responsibility of the parties' two minor children. We conclude the face of the judgment roll did not contain an irregularity. Therefore, we affirm the default judgment.

I

[¶ 2] On February 15, 2012, Kira Burgard sued for divorce and primary residential responsibility of the parties' two children. On March 7, 2012, the trial court issued an order granting Dammon Burgard a thirty-day extension to April 6, 2012, to secure counsel and file an answer. On April 6, 2012, Dammon Burgard had not filed an answer. On April 9, 2012, Kira Burgard served upon Dammon Burgard and filed an affidavit of no answer, a notice of motion for default judgment, a motion for default judgment, a brief in support of motion for default judgment, and an affidavit of proof in support of default judgment. On April 23, 2012, Dammon Burgard filed an answer, counterclaim, response opposing the motion for default judgment, and affidavit of proof.

[¶ 3] The trial court granted default judgment on May 17, 2012. The trial court found the best interests of the minor children warranted awarding Kira Burgard primary residential responsibility and Dammon Burgard parenting time.

[¶ 4] Dammon Burgard appeals the trial court's default judgment awarding Kira Burgard a divorce and primary residential responsibility of the minor children. He argues the trial court abused its discretion in granting Kira Burgard's motion for default judgment and awarding primary residential responsibility to Kira Burgard without a hearing and without sufficient evidence to evaluate the best interests of the child factors under N.D.C.C. § 14–09–06.2(1).

II

[¶ 5] In 1957, the North Dakota Supreme Court promulgated the North Dakota Rules of Civil Procedure superceding the previously codified form of the rules under N.D.R.C. ch. 28. N.D.R.Civ.P. 85 (Supp.1957); see alsoN.D.R.Civ.P. 86, Explanatory Note (stating “[t]he North Dakota Rules of Civil Procedure originally took effect on July 1, 1957).¹Rule 55, N.D.R.Civ.P., mirrors the language of N.D.R.C. §§ 28–0902 to 28–0906, and since its enaction, N.D.R.Civ.P. 55 has remained largely unchanged.

[¶ 6] The current rule is also an adaptation of Fed.R.Civ.P. 55, but with several changes. N.D.R.Civ.P. 55, Explanatory Note. Under Fed.R.Civ.P. 55(c), “[t]he court may set aside an entry of default for good cause, and it may set aside a default judgment under Rule 60(b).” Because a default judgment may be set aside for good cause in federal court, an appellant may appeal directly from the default judgment, and the appellate court may reverse the entry of default judgment if the trial court abused its discretion. See Ackra Direct Marketing Corp. v. Fingerhut Corp., 86 F.3d 852, 856 (8th Cir.1996); Swaim v. Moltan Co., 73 F.3d 711, 716 (7th Cir.1996); New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 127–28, (2d Cir.2011) (holding an appellate court reviews whether the trial court abused its discretion in granting a default judgment).

[¶ 7] Under N.D.R.Civ.P. 55, “[t]he federal provision subdivision (c) for setting aside default was not adopted.” N.D.R.Civ.P. 55, Explanatory Note. “ ‘Rule 60(b) N.D.R.Civ.P. is the exclusive means for opening a default judgment.’ ” Flemming v. Flemming, 2010 ND 212, ¶ 3, 790 N.W.2d 762 (quoting Shull v. Walcker, 2009 ND 142, ¶ 12, 770 N.W.2d 274). Therefore, the default judgment may not be set aside for “good cause.” SeeN.D.R.Civ.P. 55, Explanatory Note.

[¶ 8] In Flemming, we explained the grounds for relief from a default judgment:

Where a default judgment is entered against a defendant, the defendant should not appeal but may move the district court for relief from the default judgment under N.D.R.Civ.P. 60(b). Rule 60(b)[,] N.D.R.Civ.P.[,] is the exclusive means for opening a default judgment. The district court may grant the motion for relief from a default judgment in order to decide a case on the merits. If the district court denies the N.D.R.Civ.P. 60(b) motion, the defendant then can appeal the order denying the motion to vacate the default judgment.

2010 ND 212, ¶ 3, 790 N.W.2d 762 (citations omitted).

[¶ 9] Therefore, the trial court may only set aside a default judgment for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);

(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;

(4) the judgment is void;

(5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or

(6) any other reason that justifies relief.

N.D.R.Civ.P. 60(b).

[¶ 10] Dammon Burgard did not move to set aside the default judgment under N.D.R.Civ.P. 60(b). He is not, therefore, appealing from an order denying a motion to vacate the default judgment, rather he is appealing from the default judgment. We require a party to move to set aside the default judgment before appealing to this Court. Overboe v. Odegaard, 496 N.W.2d 574, 577 (N.D.1993). This allows the trial court to review its decision before the matter is submitted to the appellate court. Flemming, 2010 ND 212, ¶ 3, 790 N.W.2d 762 (holding an issue must be presented to the trial court before it can become the basis for an appeal).

[¶ 11] By failing to move to set aside the default judgment, Dammon Burgard limited our ability to reverse or set aside the default judgment. “When a default judgment is appealed, rather than a district court's order regarding a N.D.R.Civ.P. 60(b) motion to vacate the default judgment, [we] review[ ] the default judgment to determine if ‘irregularities appear on the face of the judgment.’ ” State ex rel. North Dakota Dept. of Labor v. Riemers, 2008 ND 191, ¶ 11, 757 N.W.2d 50 (quoting Reimers Seed Co. v. Stedman, 465 N.W.2d 175, 176 (N.D.Ct.App.1991); see also Vogel v. Roberts, 204 N.W.2d 393, 394 (N.D.1973)).

[¶ 12] “An irregular judgment is one that is materially contrary to an established form of procedure for the orderly administration of justice. ‘Irregularity’ usually means an irregularity of process or procedure.” 49 C.J.S. Judgments § 410 (2009); see also Burris v. Terminal R.R. Ass'n, 835 S.W.2d 535, 538 (Mo.Ct.App.1992) (holding, as encompassed within the rule on relief from judgment, a judgment is irregular if it is “materially contrary to an established form and mode of procedure for the orderly administration of justice”); T.W.I. Investments, Inc. v. Pacific Aggregates, Inc., 726 S.W.2d 807, 809 (Mo.Ct.App.1987) (defining an irregularity in the judgment under its rule, as a “want of adherence to some procedural rule or mode of proceeding; and it consists either in omitting to do something that is necessary for the due and orderly conduct of a suit, or doing it in an unseasonable time, or improper manner”).

[¶ 13] “[R]elief from judgment may not be granted, or a judgment vacated, for irregularity, unless the irregularity appears on the face of the record, and does not depend on proof beyond the record.” 49 C.J.S. Judgments § 410 (2009); see also Hardeman v. Roberts, 214 Ga.App. 484, 448 S.E.2d 254, 255 (1994) (holding under Georgia statute a nonamendable judgment may be set aside for irregularities, if the irregularity is “apparent from the face of the record in the absence of the additional evidence”). In T.W.I., the plaintiff failed to file an affidavit with the return of service, as required by Missouri law. 726 S.W.2d at 808–09. The Missouri Court of Appeals set aside the default judgment holding that the lack of an affidavit constituted an irregularity in the procedure and was patent on the face of the record. Id. at 810.

[¶ 14] We considered a default judgment on direct appeal in Vogel, 204 N.W.2d 393. We held, “[o]n an appeal from a judgment, where no specifications of error are attached to and served with the notice of appeal, [we] may consider only errors which appear on the face of the judgment roll.” Vogel, 204 N.W.2d at 394. The “judgment roll” is “the summons, pleadings, or copies thereof, the verdict or decision, the report, if any, the offer of the defendant, a copy of the judgment, the statement of the case, if any, and all orders and papers in any way involving the merits and necessarily affecting the judgment.” N.D.C.C. § 28–20–12(2).

[¶ 15] In 1991, the North Dakota Court of Appeals disposed of a direct appeal from a default judgment stating, “[t]he judgment itself is the only matter properly before us. No irregularities appear on the face of the judgment. The judgment is, therefore, affirmed.” Reimers Seed Co., 465 N.W.2d at 176. We have since applied the language, whether “irregularities appear on the face of the judgment,” in reviewing default judgments on direct appeal. See, e.g., Raymond J. German, Ltd. v. Brossart, 2012 ND 89, ¶ 10, 816 N.W.2d 47;Riemers, 2008 ND 191, ¶ 11, 757 N.W.2d 50.

[¶ 16] In Brossart, Brossart directly appealed the trial court's default judgment. 2012 ND 89, ¶ 10, 816 N.W.2d 47. We reviewed the judgment and found two errors within the judgment. Id. First, the judgment said Brossart did not respond within twenty days of the complaint. Id. at ¶ 11. We held that this was erroneous because N.D.R.Civ.P. 12(a)(1)(A) allowed Brossart twenty-one days to respond. Id. Second, the judgment said Brossart had failed to answer or otherwise appear. Id. at ¶ 12. We held that Brossart's communication with German...